The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1887-06-25

PEARSON and HEBRON,
The SLAYERS OF AUA TIN WALK
Err, FOUND NOT GUILTY.
Authority OF n Search Warrant
Specially Referred 10 By
Judge DuBOse.

Attorney General Peters concluded
his speech TO tue Criminal Court Jury
in the Pearson aud Heron murder
Gaze about thirty minutes after the
opening OF court yesterday morning.
Judge DuBose then delivered his
charge, alluding to the Question OF au.
thority CT search warrants as followe:
In addition TO the plea OF self de-
Tense the defense set up TO the charge
is that one OF the deiendants was an
officer and engaged at the time Ii Is al
legged the homicide was committed in
the execution al a search warrant, and
that the other defendant was appoint.
ed to aid in serving the same, and
while thus engaged they were set
upon by the deceased and others Of
his family and threatened with death
or great bodily injury.
Toe Language OF our code Is: IA
warrant may be served by any officer
or person to whom 1t is objected, but
by so other person, except in aid uf
the officer or person appointed on his
requisition." The Court charges You
that one properly authorised TO serve
q warrant may break open an outer
or inner door or window of q
house, or any part Of the houee or any
other thing therein, il after notice Of
his authority and purpose he 10 re-
fused sdmittance TO the house desig-
mated in said warrant to be searched.
II any officer or person to whom q
search warrant lie directed, or person
appointed TO aid such O one in The ex-
an,.Ftnfx II Nhra Il
auce, and the offender ia killed in the
struggle, the killing will be just fed.
rhess, as we'll as other ministers of
justice, are under the special protec.
ton Of the law. II ia the necest ary
discharge OF their duty 81 ey meet with
resistance, they are not obliged to re-
TIRE at 80 far as they can with ssfety,
but may freely and without retreating
repel force by force, and il the party
resisting be killed by those thus en-
gagged in the execution OF the search
warrant, the killing will be jus!ifiable
homicide.
But on the other hand, il the officer
or person thus empowered to serve
such warrant exceed the necessity Of
the case in the execution OF his ofiice,
and kill the person resisting, or in
other words, il the warrant could have
been executed without such severity,
II would ct leaet be granddaughter In
him who kills the person resisting;
and 1t Is the duty CT the Jury to In.
quire whether 1t were done of neces-
slty or not.
l. lie, however, necessary for the Jury
to determi le from the evidence In the
case whether or not the warrant which
the defendants claim as their authori.
ty for eearching the house Of the de-
ceased st the time the homicide was
committed, was such process, issued
by aud in accordance with the author.
ity conferred by law, as would protect
them in thus searching the house Of
the deceased The law imposes upan
all ministerial officers the duty of de-
Gliding upon the validity of the process
issued TO them Tor execution, for II the
process In the hands of an officer be
unauthorized by law or not issued by
authority of an officer empowered to
issue II, aud he attempts to execute II,
he does so at his peril.
No search warrant, says our code,
can be issued but upon probable cause,
supported by affidavit naming and de-
scribing the person aud particularly
describing the property and place to
be searched. Such warrant may be
Issued in the following cases: (l
When the property was stolen or en-
bezz|ed; (2) when it was used rs O
means vi committing a felony; (3)
when IL 10 In the possession OF any
person with the intent to use il as the |
means of committing an offense, or in
the possession of another TO whom he |
may have delivered 1t for the purpose
OF concealing it or preventing its being
discovered.
The grounds upon which the appli- |
cation is made for the issuance Of the |
warrant must be examined by the
sgistrate, and he must be satisfied
that there is at least probable cause to
believe there exist facts tending to &C.
tablish the grounds OF the applica-
ton. The particular grounds of the
application must be stated in the war-
rant, Us well as the name of the per.
son on whom the search is to be made,
or il in the house OF the person
named, the house must be described
with reasonable particularly, as the
case may be, and the property for
which the search is to be made should
also be described with reasonable par
ticu arity. This warrant should be
signed by the magistrate and directed
to the officer or person who 10 to serve
1t. These are essentials In the isBu-
ance of valid search warrant, and
The officer or person authorised 10
serve it is required at his peril, or II is
bis duty, to see that the warrant Is
thus made out before he would be jus.
tilted from q charge Of unauthorized
aggression In an attempt to serve II.
II, however, the defendants, in the
bona fide execution OF what they re-
garded TO be q valid search warrant,
entered into the inclosure oil the de-
ceased, where he and his family re-
sided, and on coming in and knocking
at the door OF the dwelling house for
admittance, making known or inform
ing the deceased CT their purpose to
search his house, and the deceased
then with other persons In the house
came out aud made deadly assault
upon the defendants, that is, putting
their lives in danger, or great bodily
injury was intended them, and this
apprehension OF danger was founded
on su fficient circumstances to author.
izs the opinion in the minds Of the de-
Iendanls that the deadly purpose then
existed, they could lawfully Tepsl
Iorce with force, and II the deceased
lost his life in the struggle, the killing
will be justifsble homicide.
The jury then retired, and in ten
minutes returned with a verdict oil not !
yuilty.